#### The People *ex rel.*Orlando P. Dexter *v.*James K. Mosier, Commissioner of Highways, *et al.*

*(Supreme Court, General Term, Third Department,*

*Filed February 4, 1890.)*

1. Constitutional law—Highways—Laws 1880, chap. 114.

Chapter 114, Laws 1880, providing for the laying out of highways in ' towns whose real estate is assessed at an average of less than $5 per acre, is unconstitutional, as it does not provide for notice to the owner of property, either of the taking thereof or of ascertaining the damages.

■2. Certiorari—Highways.

The action of the commissioner in laying out a highway may be reviewed by *certiora/ri,*as well where the proceeding was under an unconstitutional law as when it is contrary to statute law.

Certiorari to review the proceedings of the commissioner of highways of the town of Waverly in laying out a public highway .across the land of relator.

The highway in question was assumed to be laid out under ■chapter 114, Laws 1880.

The relator claims that the proceedings for the laying out of :such highway, and the order laying it out, are void for the following reasons.

1. Because chapter 114, Laws 1880, was repealed by chapter 696, Laws 1881, and chapter 267, Laws 1885, and that said road could not be laid out until a jury had certified to the necessity, thereof.

2. Because chapter 114, Laws 1880, is unconstitutional and void, in that it provides for the taking of private property without any notice, or opportunity to be heard, with reference to any ■of the proceedings, to the owner or owners thereof, which is ■“without due process of law.”

3. Because no notice or opportunity to be heard was given to the relator with reference to the laying out of such highway, or the proceedings therefor.

4. Because the said town of Waverly is not one of the towns ■excepted by chapter 114, Laws 1880, and said .road could not be laid out unless a jury had certified to the necessity thereof.

*John P.*Badger, for relator; *Jacob W. Webb,*for resp’ts.

Learned, P. J.

The statutes which have to be considered in ■ this case are a flagrant specimen of careless and ignorant legislation.

A highway system was established by the Revised Statutes.

Chapter 431, Laws of 1875, amended § 60, article 4, title 1, ■chap. 16, part 1, R. S., and began by calling it “ § 75.”

Chapter 114, Laws 1880, excepted from the provisions of the *129aforesaid, amendatory act all towns whose real estate is assessed, as shown by their last assessment rolls, at an average price of less than $5 per acre. And it provided a very summary mode of laying out such highways in such towns.

The assessment roll referred to might mean the last before the passage of the act or the last before the opening of the highway.

Then chap. 696, Laws of 1881, amended § 74, .-art. 4, title 1, chap. 16, part 1, Revised Statutes.

Finally chap. 267, Laws of 1885, was passed to amend certain errors in’ the Laws of 1880 and 1881. And one of the dozen amendments was in the last named act, to make “ § 75 ” read “ § 60.”

Now, whether the amendment of 1881 was to do away with the exception of 1880, or whether that exception was to remain, probably no legislator knew or cared. And all were probably equally careless whether the exception of 1880 from the provisions of 1875 was also an exception from the provisions of the Revised Statutes.

The commissioner of highways, in this case, assumes that chap. 114, Laws of 1880, is in force, and that it applies to his town of Waverly, because the assessment roll of 1888 showed an average of less than five dollars per acre. And in pursuance of that act he has laid out a road.

That act provides for no appeal, therefore this *certiorari*lies.

Section 2 of the act authorizes the commissioner of highways, on the petition of six freeholders, to lay out a road and to adjust the damages; and on making out and filing an order containing a correct survey of the road and a statement of the amount of damages allowed for the same, the road shall become a public highway.

No provision is made for giving any notice to any owner of property, either of the taking of his property or of the ascertaining his damages.

It has so often been held that “ due process of law ” must include notice to the party whose property is to be taken that we need only state the principle.

Whether § 3 of the act might not, in a very imperfect way, supply the lack of notice of the assessment of damages we need not say. It is enough that the statute has no provision by which the owner, whose land is to be taken, has an opportunity to be heard on the question of taking his land for a highway.

The defendants say that if their act is illegal it cannot be reviewed by *certiorari;*that the only,remedy is trespass. The case cited, *People ex rel. Cook*v. Nearing, 27 N. Y., 306, does not sustain that doctrine. The doctrine is to be found only in the head note of the reporter, which in some volumes of these reports is not good authority. Whether any trespass was committed we do not know. The *certiorari*is not to remedy a trespass, but to correct a wrong judicial or *quasi*judicial action. And the action is just as wrong when it is contrary to the constitution as when it is contrary to statute law.

*130The proceedings must be reversed, with fifty dollars costs and disbursements to the relator.

Landón and Fish, JJ., concur.